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Can a dismissal without warning for serious misconduct ever be 'fair'?

VWV

The Facts

Mr Barongo was employed as a medical sales representative with Quintiles Commercial UK Ltd (Quintiles) from 1 October 2012.

Mr Barongo was subject to disciplinary proceedings in respect of two acts of misconduct which took place in November 2015.

The first was for failure to complete an online training course before the deadline, and the second was for failure to attend a compulsory training course.

A few months before the incidents took place, Mr Barongo had been placed on a performance review plan.

He claimed that the reason for not completing the training was that he was concentrating on improving his performance, and therefore prioritising other matters above the training courses.

Quintiles did not accept this explanation and dismissed Mr Barongo on notice for gross misconduct, citing a breakdown in trust and confidence. Mr Barongo appealed and, on consideration of his case, Quintiles reduced the categorisation of his actions from gross misconduct to 'serious misconduct'.

However, it upheld the original decision to dismiss on notice. Mr Barongo brought a claim in the Employment Tribunal for unfair dismissal.

The tribunal upheld Mr Barongo's claim on the basis that an employer should give warnings to an employee guilty of 'serious misconduct' before dismissing them.

This is not necessary when dismissing an employee for gross misconduct.

Quintiles appealed the decision to the EAT.

The Decision

The appeal was successful and the case was remitted to be heard again by a fresh tribunal.

The problem with the original decision was that the ET had decided the dismissal was automatically unfair based on the fact that there was no gross misconduct and no warnings had been given.

In fact, given that a dismissal on the grounds of an employee's conduct is a potentially fair reason for dismissal, the ET should have assessed whether the decision to dismiss fell within the band of reasonable response open to a reasonable employer.

The company's appeal clearly exposed a weakness in the decision of the original ET.

However, it may still face an uphill struggle in showing that its decision to dismiss fell within the band of reasonable responses when the case is heard again.

It is well established that an employee would usually receive warnings before a conduct dismissal where the conduct falls short of gross misconduct.

However, the facts of every case are different.

Perhaps the detailed facts of this particular case will persuade a new ET that Quintiles' decision was reasonable despite the lack of any warnings.

It is possible that the collapse in trust and confidence alleged by the employer will be a factor.

Best Practice

In most cases action short of gross misconduct will result in a warning rather than dismissal.

However, the facts of every case will be key.

If particular actions will be looked on very severely by an employer (for example failing to undertake mandatory training) then it may be wise to list those in the disciplinary policy as potential acts of gross misconduct.

For more information, please contact Kathy Halliday (khalliday@vwv.co.uk) in our Employment Law team on 0121 227 3711.